Monday, June 19, 2017

Taking the Gloves off for Cameras in the Court

By Eric Segall

Last week in the L.A. Times (with support from Judge Posner
and Justice Willett) and in Judicature
(writing with Erwin Chemerinsky), I discussed the Supreme Court’s continued refusal
to allow any video coverage of its proceedings. My tone in both pieces was
reasonably measured (at least by my standards), and I had to leave out a few
arguments because of space requirements. For this piece, the gloves come off, and I can be a bit more comprehensive. I also want to respond to the concern that we should ask the Justices to move slowly, maybe by starting with live audio, before they approve cameras.

There is not a single good
reason justifying the Court’s blackout of its already public oral arguments and
decision announcements, while there are compelling reasons the Court should
enter the 21st century. The benefits of allowing cameras include the
following: 1) the generalized interest in more governmental transparency; 2) the democratic interest in allowing everyone to witness what a privileged few in the courtroom get to see; 3) the citizenship interest in providing moments when we can gather together and see historic governmental decisions
being made (almost 20,000,000 people watched James Comey’s recent testimony); 4) the modern interest in engaging
younger generations in the work of the Court in a way that is impossible through after-the-fact audio; 5) the historical interest in allowing museums to capture and display landmark arguments and decisions; 6) the educational interest in providing students and teachers of the law, and Americans in general, the
opportunity to see heated disagreements over fundamental legal questions carried
out with civility and respect; 7) the professional interest in allowing Supreme Court litigators to witness
the Justices in action to better prepare them for their arguments; and 8) the societal interest in demystifying
the role of the Justices and the nature of the Court’s proceedings.

I have previously explained
all of these benefits in much more detail and won’t repeat those arguments here.

The arguments against cameras
or live-streaming are based almost entirely on fear and speculation. Before I
list those, however, it is important to note that all fifty states, other
countries, and the U.S. Court of Appeals for the Ninth Circuit regularly show their arguments
with no complaints. The Supreme Court of Texas has been webcasting for a decade. Forget the arguments about
the O.J. Simpson trial and cameras. I am not arguing for trials to be on television.
I am advocating for cameras at appellate arguments where there is no jury.

There are a few academics who continue to argue against cameras based on the fear that television
or live streaming will change oral arguments for the worse. There is no
evidence, however, this has been true at the fifty state supreme courts, the Ninth Circuit, or other countries but, of course, those arguments aren’t on C-Span or
national television here in America. Nevertheless, the notion that either
Supreme Court litigators or the Justices themselves will play to the cameras in
a way that is injurious to the American people or the Court is wildly speculative if not fanciful.

Unlike members of Congress who
obviously play to the cameras because they need to be re-elected, or they want
their political party to look better, the Justices don’t have the worry of
elections, and they are unlikely to appear overly partisan on national television. Any attorney who is seen by the Justices as performing for a television
audience will feel the Justices' wrath quickly and sternly. In any event,
should any of this come to pass and the arguments deteriorate significantly,
the Justices can change their minds and prohibit cameras in the future . Shouldn’t we
find out?

To the extent there
is a worry about lawyer misbehavior specifically, none of these fears are
relevant to the Court’s decision announcements after the end of April when
there are no oral arguments and the Justices have complete control of the
proceedings. This period is also when the Court’s most important decisions are
handed down, and the American people would have the most interest in seeing the
decisions announced.

The Justices and others opposed to cameras have also made the following arguments:

1)The
public might place undue importance on the oral arguments as opposed to the briefs and final written opinions;

2)Cameras
might make it more likely that the Justices will be the victims of violence;

3)Snippets
and sound bites of the arguments might be taken out of context by the media;
and

4)The
Justices might be ridiculed by late night comedians or mock news shows.

I have documented these
objections and responded to them at length in numerous places before. My most
academic treatment is here,
and Erwin and I also examined them in our Judicature essay.
In brief:

1)The
possibility that the public might not understand the role of oral arguments is
no reason to deny them the chance to view them, and the Justices could easily
explain the role of the arguments in many different fora.

2)There
is no evidence that cameras present a security risk to the Justices. In this day and age, when
information on all the Justices as well as their images, are publicly available on the internet, and many of them go on television either to sell books or simply discuss their jobs, it is most unlikely that cameras in the courtroom will lead to a substantial increased risk of violence.

3)All
government officials--indeed, all people--when they speak in public, risk having their statements
taken out of context through misleading soundbites.
Those concerns do not justify a media blackout in other contexts or in this one. Moreover,
the Justices run this risk now and, if there is a dispute about something
that is said or happens in the courtroom, visual evidence could only help get
to the truth.

4)Being
mocked by comedians or late night mock news shows is simply part of the job.

The benefits set forth above easily
outweigh the hypothetical fears. Moreover,
if cameras do end up having pernicious effects that outweigh the educational, democratic,
and historical benefits of cameras, the Justices are free to change
their minds.

I want to end by responding to
an argument that Jerry Goldman, Emeritus Director of OYEZ, made to me in a
series of emails. Jerry is ultimately in favor of cameras in the Court but feels it will only happen “brick by brick.” He wrote that courts “like to take small
steps and follow well-worn paths.” The “easier case” Jerry argued, is to argue
for live audio feed which “would move the ball closer to the goal of video in
the courtroom.” Jerry finished his admonition to me not to “clobber” the Court by noting that the slow approach was adopted by Justice Ginsburg
for gender equality, the NAACP for Jim Crow, and Justice Kennedy for gay
rights. He didn’t think we should push for “one giant leap.”

I understand and sympathize with
these arguments, especially as I made similar ones publicly in the same-sex
marriage cases--urging the Court to decide Windsor
but wait a few years before deciding the validity of state same-sex marriage laws--and I have argued that Roe v. Wade was too much
too fast. But the issue of cameras in Court is different. There will be no
backlash, except maybe from the Justices, to allowing cameras in the Court, and
unlike the examples provide by Jerry, we have years and years of experience with
cameras in courtrooms, including the highest courts of the land in Canada,
Brazil, and the UK, We don’t need to take baby steps to figure out if this is a
good idea because it has already been done. The fights for same-sex marriage, gender
equality, and desegregation in the South are not remotely similar.

In 2017, with a showdown between the President and the Court brewing, and
abundant evidence that the American people want to watch their government on
television, allowing cameras in the Court should be an easy decision for the Justices to make. There is no reason to wait any longer. The Court should permit cameras in their already open proceedings as fast as C-Span can put them there.

4 comments:

I have no basic disagreement with Eric's post. In my retirement I would enjoy watching live oral argument proceedings of the Court. I have the time to watch, although I may have to update by cable from basic unless C-SPAN's Court proceedings are included on basic cable; but that might be a small price, at least for me, to pay. But will there be a broad audience? C-SPAN covering the House can be - and for me is - very boring. I'm sure legal professionals will watch. But how might the general public react, especially if late-night picks up on the orals with clips? Sure, the Justices can shut it down if it becomes a problem, but that action might further deride confidence in the Court.

In any event, it's worth a try. But if it is successful, what comes next in the proceedings of the Justices that should be open to the public - deliberations? Keep in mind that C-SPAN on the House lets us observe debates/deliberations of House members and voting. What further demands may be made of the Court for public consumption?

On a personal note, since first appearing in a court in the mid 1950s, I've thought about a judge wearing a robe. Is it necessary? And Justices at State of the Union speeches in their robes. Some might say the robes are necessary because that's how we recognize who's the band leader. Robes can be intimidating in the courtroom but can seem silly in the House. I gave up my SPy Prints collection that had long hung in my law office after retiring. They were amusing parodies of judges in robes.

As to an audience, there will be a sizable one for certain cases and there isn't much of one for C-SPAN in general. How many read transcripts? But, supply will probably advance demand there, as seen by the popularity of decision day blogging and twittering (Kimberly Robinson‏ and Chris Geidner are two popular legal reporters who live tweet). Also, as is agreed apparently, it has general value.

Anyway, I personally was quite excited when Peter Irons released excerpts of various oral arguments (with commentary) in the early 1990s. Cassette tapes at first! Eventually, Oyez.com provided full length arguments as well as many opinion announcements. Many of these are powerful in themselves -- see, e.g., the ones involving affirmative action, the death penalty etc., at times with dissenting justices. Unfortunately, there is no opinion announcement on the website for Roe v. Wade.

Britain and Canada provides audio and video and video has been used by various lower courts in this country (e.g., Judge Sotomayor is available in video even if Justice Sotomayor is only available on video promoting her book etc.). Each time justices are asked, they should be reminded of that fact. And, audio for opinion announcements as well as video for opinion announcements and other non-oral argument segments of the Court's business would make sense.

Anyway, I do think some half-way moment might be done first with the complete thing coming fairly fast. See the two step process for same sex marriage. But, I agree that doing it all at once would be okay.